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Legal Glossary

a non domino – from one who is not the owner: when land is sold by a lawful occupier but all trace of the identity of the true owner has been lost; the purchaser’s defective title is cured by passage of time.

a priori – viewed from before; reasoning from cause to effect.

ab intestato – from a person dying intestate; description of property acquired according to the rules of intestate succession.

absolutely insolvent – the state of a debtor whose liabilities are greater than his assets.

Accountant in Bankruptcy – the official supervising the administration of sequestration (bankruptcy).

Accountant of Court – the officer of the Supreme Court supervising the conduct of persons appointed by the court to look after the financial affairs of others.

acquiescence – defence to a claim which arises through failure of a person whose rights have been infringed to object within a reasonable time after he became aware of the facts.

adjust – to alter the written pleadings in a case during an initial authorised period. This does not need the court’s permission and the parties exchange such adjustments without lodging them in court – the court sees them when adjustment is closed, when the final version is then lodged. See amend.

advocate – (1) a member of the Scottish Bar, the equivalent of the English ‘barrister’;

affidavit – a written statement made on oath and signed by the maker, most commonly used in undefended actions of divorce.

affirm – (verb) as a witness, to make a solemn declaration to tell the truth, where the maker prefers, for religious or other reasons, not to take the oath.

animo donandi – with the intention of giving as a gift.

annuity – a right to a yearly payment of money.

appellant – a person appealing to a higher court from the decision of a lower court (e.g. in a criminal case from the sheriff court or district court to the High Court of Justiciary, or in a civil case from the Court of Session to the House of Lords).

arbiter – a person appointed to adjudicate in a dispute outside the courts. On a question of fact, his decision is final; on a question of law, unless otherwise agreed, he may (on the application of either party) and must (if the Court of Session so directs) state a case for the court’s opinion on any question of law.

arrestment – the taking or freezing of the property of a debtor which is in the hands of a third party, done to obtain security for a creditor.

assoilzie – (verb) to absolve; to make a final decision in a civil action in favour of the defender. The judgement is termed ‘absolvitor’.

attestation – witnessing of a document.

attorney – a person acting on behalf of another with his written authority (called a power of attorney).

Auditor of Court – the court officer or other person responsible for the assessment of lawyers’ fees in the Court of Session or sheriff court.

authority – a judicial decision, authoritative textbook or statute justifying a proposition or statement of law.

avizandum – the judge needs time to consider his verdict and prepare a judgement.

bairns’ part – the part of the moveable assets (cash, insurance policies, etc.) of a deceased person to which his children have a legal right despite the terms of any will. See legitim.

beneficiary – a person who will benefit from the terms of a deed such as a will.

blood relationship – the relationship between two people who have either one common parent (relationship of the half blood) or two common parents (relationship of the whole blood), as distinguished from relationship by marriage, where no parent is shared.

bona fide(s) – (in) good faith.

bounding charter or bounding title – a deed which defines the land comprised in it by reference to its boundaries. Reference may be to walls, roads or the land of another person, or by measurement.

brevitatis causa – for the sake of brevity: a phrase incorporating by reference the terms of some other document, usually into writing.

closed record – the final written pleadings of the parties to a civil action.

codicil – an addition to or alteration of a will without re-writing it entirely.

cognate – a person related on the mother’s side; the opposite of agnate (related on the father’s side).

cognitionis causa tantum – have the amount of the debt ascertained; an action raised by the creditor of a deceased debtor for the purpose of proving his debt to make a claim in the administration of the deceased’s assets.

common law – law which does not derive from Acts of Parliament, etc. It includes law as laid down in judicial decisions and academic opinions.

composition – an arrangement between a debtor and his creditors whereby debts are discharged in exchange for only an agreed partial payment.

confirmation – (1) the authority of the court to an executor of a deceased person’s estate to begin gathering in and administering the assets; (2) the document evidencing this authority.

conjoined arrestment order – an order against the earnings of a debtor to enforce the payment to different creditors. Each creditor gets a share but the total deducted from the earnings each week or month is the same.

conjunct or confident persons – persons closely related by blood or affinity, including business associates; transfer of assets to such persons is viewed suspiciously by creditors, especially in bankruptcies.

consensus in idem – agreement as to those matters in a contract which are essential to make the contract binding, for example there is no consensus if one party believes he is hiring from another but the other believes he is selling to the first party.

contra proferentem – against the person putting it forward. An ambiguous term in a contract will be read so as not to benefit the person who inserted it.

contributory negligence – Since 1945 the court may reduce an award of damages in proportion to the claimant’s share of responsibility for what happened.

counterclaim – a claim by a defender in a case against the pursuer even though he could have sued for it separately if he wished.

creditor – a person who is owed money.

curator ad litem – a person appointed by the court to act for another person under disability (e.g. by reason of illness or mental disorder) whose interests have to be safeguarded in legal proceedings.

curator bonis – a person appointed to act generally for a person incapable (through illness or absence) of administering his own affairs.

curatory – the assets administered by a curator.

damages – a sum of money claimed as compensation for loss or injury through negligence or breach of contract.

de facto – in fact but not recognised by law, for example a de facto (but illegal) President.

de jure – in law (but not necessarily in fact), for example a de jure (but exiled) President.

de novo – new, afresh; starting again from the beginning.

de plano – summarily; without further legal enquiry; usually ‘decree de plano’.

de presenti – now, at the present time.

de recenti – recent. Possession de recenti of stolen goods may create the presumption that the possessor is the thief.

decree – the judgement of a court or arbiter in civil proceedings.

dictum – an opinion on a specific issue made by a judge in the course of a judgement.

dies non – a day (e.g. a Sunday or public holiday) when judicial proceedings are not conducted.

dispone – to transfer land.

disposition – a formal deed transferring land.

docket or docquet – an authenticating endorsement on a deed or other document, for example by a clerk of court to certify a true copy.

domicile – the place where a person is considered by law to have his permanent home.

edictal citation – the citation of a person subject to the court’s jurisdiction but outside Scotland or whose whereabouts are unknown, by delivery to a court official who enters it into a special register.

eik (pronounced ‘eek’) – additional inventory of property not included in the original inventory of a deceased estate.

ex adverso – opposite to; describing the position of land or buildings.

ex facie – on the face of it. Something ex facie valid is presumed to be so unless contradicted by evidence.

ex gratia – out of goodwill; an ex gratia payment may be made to settle a claim without any admission of liability.

ex officio – an office held by virtue of holding another office. Thus a Lord Provost may be ex officio a trustee of his city’s Art Galleries Trust.

ex parte – from one side; proceedings where only one party has had the opportunity of being heard.

ex post facto – after the event.

ex proprio motu – of his own accord: a decision made by a judge without a party requesting it.

excambion – the exchange of one piece of land for another.

execution – (1) the carrying out or enforcement of an order or decree of court;

(2) certificate by a court officer that the court’s order has been carried out;

(3) the act of authenticating a deed by signing it in accordance with the appropriate formalities.

executor – a legal representative of a deceased person whose duty is to administer the deceased’s

estate and implement the terms of any will.

executor dative – an executor appointed by the sheriff where there is no will or the executors nominated decline to act or may be deceased themselves.

executor nominate – an executor appointed by the deceased in terms of a will.

executry – the process of winding up the estate of a deceased person in accordance with a will or with the law of intestate succession.

exoner – to release from further liability, for example to allow a trustee to resign.

extract – a formal copy of a decree or other judicial or legal document.

factor – a person who manages property on behalf of the owner;

feu – a piece of land held by a feuar or vassal. Feudal land has conditions attached in favour of the superior (or ultimate owner), for example payment of feu duty. This is soon to be abolished by the Scottish Parliament.

furthcoming – an action to order a third party to pay arrested money to the creditor. See arrestment.

General Register of Sasines – a public register, maintained since 1672, in which all deeds relating to land must be recorded. The register is gradually being superseded by the Land Register of Scotland but both have the same basic function.

gratuitous – without payment or other consideration, as opposed to onerous.

gratuitous alienation – a transfer of property for no, or an inadequate, price, usually to the prejudice of someone’s creditors.

habile – admissible; valid; competent for a legal purpose.

habili modo – in the manner competent. Thus a proof habili modo is a hearing where evidence will

heard in a manner appropriate to the circumstances.

heritable property – property consisting of land or buildings.

honorarium – a form of financial gift as an acknowledgement for services, for example the secretary of a golf club.

interdict – an order prohibiting an act or course of action (in England, an injunction);

interlocutor – an order or judgement pronounced by the court in the course of a civil action. The final

interlocutor is the decree.

intestate – (1) (n.) a person who dies without having left a valid will;

(2) (adj.) describes such a person or his estate.

invecta et illata – the furniture, etc. of a tenant brought on to leased premises which are subject to the landlord’s hypothec as security for rent.

ipso facto – by the fact itself.

ipso jure – by operation of law.

ish – the date of termination or expiry of a lease.

joint and several obligation – an obligation resting upon more than one person in which each obligant is liable for performance jointly or collectively with the others but also severally or individually. The creditor in such an obligation may sue all, or alternatively any one, of his debtors.

judgement – the final determination in a litigation in which the judge sets forth his decision and, usually, his reasons for reaching it. See decree and interlocutor.

judicial factor – a person appointed by a court to hold or administer property in Scotland where it is in dispute or where there is no one who could properly control or administer it. A judicial factor must have indemnity insurance and his work is supervised by the Accountant of Court.

judicial review- procedure in the Court of Session to review grievances by persons who allege that (I) that decisions of inferior courts,public bodies,tribunals or other authorities (where no other form of appeal is provided ) were outwith their powers or not in accordance with proper procedures or (ii) that such parties have failed to perform their duties in a proper manner. The Child Support Agency is an example of an organisation subject to judicial review.

jurisdiction – (1) the authority of a court to hear and decide a particular case, an authority which may be restricted by ……………………….territorial boundaries, the value or type of case or considerations, and which, in civil proceedings, is ………………………now determined primarily by European rules set out in the Civil Jurisdiction and Judgements Act 1982; (2) the territorial area within which a particular court may exercise that authority.

jus relictae – the right of the widow to claim against her husband’s estate even if she was left out of his will. A widower has a similar right, the jus relicti.

lacuna – (1) an omission or blank space in a document; (2) a situation not covered by rules or regulations when it should have been.

legitim – a child’s right to claim against a deceased parent’s estate even if they were left out of the parent’s will.

mens rea – guilty purpose or criminal intent.

misfeasance – the wrongful or unlawful performance of official duty.

missives – the letters exchanged by the parties which constitute a binding contract to buy and sell land, setting forth the terms and conditions in detail.

mutatis mutandis – making the necessary alterations. An existing document used for another purpose is read as altered to meet the different circumstances, for example trout could be bought using a salmon contract if it were to be read mutatis mutandis.

nexus – bond, or relationship by legal acts, for example a contract creates a nexus between the parties.

notary public – an official before whom affidavits and other documents may be sworn.

obiter dictum – an opinion expressed by a judge on a point which is not essential to the decision of the case before him. Such opinions are not binding on other judges.

obtemper – to obey, comply with or fulfil, used especially of a court order.

onerous – given for value, payment or services, as opposed to gratuitous.

onus of proof (onus probandi) – the burden of proving each disputed issue of fact arising in a litigation.

ostensible – usually seen in the phrase ‘ostensible authority’; reliance placed by others on the authority of someone to enter into contracts on behalf of another person he certainly appears to represent.

paction – an agreement or contract.

pari passu – equally; taking the same share or priority, usually when dividing up a debtor’s assets.

parts and pertinents – everything which passes with the actual land on its transfer or disposition, for example minerals or fishing rights.

personal bar – the rule precluding a person from raising in court issues which his opponent believes were already resolved, provided that the opponent has done something to his disadvantage in relying on the previous arrangement, for example accepting a cheque in full and final settlement.

pleadings – the formal written presentation of a party’s case in court in a civil action.

plenishing – furniture, equipment, stock or gear.

precognition – a preliminary statement of the evidence which a witness may be expected to give, taken down in writing. It is not signed and cannot usually be produced in court.

prescription – rules of law by which rights are gained or lost by lapse of time, for example establishing a right of way or failing to sue for damages.

prima facie – at first appearance or sight. A prima facie case is one which, at first sight, appears compelling and calls for an answer.

primo loco – in the first place. Secundo loco means in the second place, and so forth.

pro bono publico – for the public good; for the advantage of the public generally.

pro indiviso – in common; in an undivided manner; as of one person’s right in property owned in common by two or more persons.

pro non scripto – as if not written; matters in a deed that are ignored, for example illegal or impossible conditions in a will.

pro rata – proportionately.

quantum – how much, for example damages payable.

quid pro quo – something given in return for something else; the price paid for goods.

quoad ultra – all the rest; in civil actions some of the facts may be admitted and quoad ultra denied.

ratio decidendi – the judge’s legal reason or ground on which a case is decided.

repone – to appeal in an undefended action.

repudiate – to indicate by actions or words that a party does not intend to perform an obligation.

res judicata – a case or issue decided finally, so that it may not be raised again in a litigation between the same parties.

res nullius – something which belongs to nobody.

res sua – one’s own property.

rescind – to terminate or cancel a contract for lawful reasons, as opposed to merely breaking it.

sine qua non – an essential condition or factor.

solatium – compensation or damages given for the injury to feelings, reputation, pain, suffering and loss of expectation of life, as opposed to, say, loss of earnings.

survivorship clause – a clause in a will or conveyance which provides that should one of the several beneficiaries or grantees die before they inherit, their interest is to pass to the survivor or those who survive.

taxation – the assessment of a solicitor’s account for legal expenses or charges in litigation by the Auditor of Court to establish a fair fee.

testate – having died leaving a valid will.

testing clause – the clause at the end of a deed identifying the parties signing and specifying the date and place of execution and the witnesses’ details.

time bar – the effect of lapse of time on a person’s rights, preventing them from taking steps to enforce those rights or extinguishing them entirely. See also prescription.

timeous – within the period allowed by law.

vacant possession – no obstruction and no person (such as a tenant) in occupation to prevent a purchaser enjoying actual possession of a property.

vexatious litigant – a person who brings proceedings primarily for the purpose of annoying or embarrassing the defender. The Court of Session may prohibit a vexatious litigant from raising court actions unless the court’s approval has first been obtained.

vi clam aut precario – to hold by force, or otherwise without legal right, for example a squatter.

vitious intromitter – a person who takes possession of the property of a deceased person without lawful authority.

void – null; having no legal effect whatsoever, for example a marriage by a person under age.

voidable – apparently valid, but tainted in some way, so that a contract, deed or obligation may be declared invalid at a later date but remains in force until then.

warranty – an express or implied material guarantee in a contract.

without prejudice –(1) in statutes or documents, this phrase introduces a saving clause, creating an exception to the provision in which the phrase is used; (2) in negotiations for the settlement of a dispute, indicates correspondence which, if the negotiations fail, is not to be founded on in later litigation.